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Legislative Process
Overview
1) Committee
bill is introduced by a member and is referred to a committee
committee chooses to disregard (pigeonhole), defeat, rewrite, or report w/o amendments
2) Rules Committee
Committee either puts bill on the (slow) floor calendar or to the Rules Committee
Rules committee assigns the rules of debate, amandements, etc. that will apply to discussion of the bill
2) Floor
Bill is reported from committee to the floor, where there is debate
Senate: filibuster (overcome by cloture=60 votes)
possibly more amendments, passage / defeat
3) Bicameralism
If passed, the bill is referred to the other legislative branch
same process as above, but if amended, then it goes back to the first branch
If the two branches can’t agree, then can request a conference committee comprised of members from both branches. Each house must concur in the conference report.
4) President
may approve, allow bill to become law without signing (if 10 days pass)
veto, or “pocket veto”—if 10 days pass but Congress has already adjourned
Theories of the Legislative Process:
1) Pluralism: interest groups with interests in opposition to the public interest compete for influence in determining the outcome of legislation (zero sum)
ex. NAACP supported school desegegation, but this would lead to most African American teachers losing their job
· some interest groups themselves are coalitions of opposing interests
· the interest group with the most popularity/ most members will win
· requires that interest groups be sensitive to the interests of congressmen (re-election, ambitions, etc.)
2) Public Choice: interest groups prevail because of powers not related to popularity but based on the economic model of supply and demand
Distributed benefits—benefits society as a whole (free-rider problem)
Distributed costs—society pays through taxation, compliance (again, free-rider problem)
Concentrated benefits—only select groups benefits (strong interest group organization)
Concentrated costs—only select groups must comply (organized opposition to these)
Examples:
a) distributed benefits/ distributed costs: no bill is favored, sometimes angency delegation, ex. criminal statutes
b) distributed benefits/ concentrated costs: delegated to agency regulation, ex. environmental statutes
c) concentrated benefits/ distributed costs: no opposition, so bills pass with self-regulation, ex. agricultural subsidies, social security
d) concentrated benefits/ concentrated costs: no bill favored, no delegation to agency regulation, ex. labor legislation
3) Proceduralism: institutional procedures protect the status quo from minority factions
preferences are determined in relation to one another, not isolated:
ex. Alice=dog, parrot, cat
Bobby=parrot, cat, dog
Cindy=cat, dog, parrot
proceduralist strategy: 1st campaign is dog v. parrot, then whoever wins will be v. cat
strategic voting: thinking ahead to who would more likely win the next round
4) Institutionalism: the institutions themselves protect the status quo from minority factions
Application:
1. Griggs v. Duke Power—the Supreme Court interpreted the Civil Rights Act of 1964 to prohibit employment policies with disparate impact, so long as those policies are not relevant to the job.
Not the intention of Congress in 1964
But the Court is only accountable to the present Congress, which was more liberal
· because of African American voters, both houses shifted to the left
· also, labor committees in both houses supported outcome in Griggs
these committees had gatekeeping power over issues on agenda
· Median House member v. median committee member—committees give Court/ interpreter discretion to move statutory policy away from status quo
2. International Brotherhood of Teamsters v. United States—The Supreme Court overruled Quarles v. Phillip Morris and held that a seniority system is not unlawful just because favoring those who already have seniority unintentionally discriminates against blacks.
Relied on legislative history to interpret the Civil Rights Act
Based on Congress’ intent when it was passed, not the policy of the new Congress
Statutory Interpretation
Theories of Interpretation:
Intentionalism: based on the intent of the legislature (“specific intent”) ex. see Romer
tools = legislative history, other activity of the legislature, text of the statute
pros = avoids absurd results not intended by Congress
cons = interpreter might “assign” an intention in order to get a desired outcome
Purposivism: interpretation that best carries out the purpose of the statute (“general intent”)
tools = legislative history, other activity of the legislature, text and title of the statute
pros = avoids absurd results not intended by Congress
“bounded purposivism”—purpose can sometimes be narrowed if against Cong’s intent
cons = subjective, like legislative intention
Legal Process Theory: sound process is critical to a law’s legitimacy (Hart & Sacks)
Rudiments of Statutory Interpretation:
“Reasoned elaboration”—judges’ decisions work out the fact-specific details of statutes’ “general directives”
Legislature is chief policy-making agency, intended to solve the problems of social living
Courts interpret the words of the statute so as to carry out the purpose of the statute
“mischief rule”—find purpose by identifying the mischief / defect that the statute was meant to remedy (Heydon’s case—old British case)
Words are to be taken literally
but some words have more than one meaning (all meanings must be considered)
cannot give the words a meaning they will not bear (prevents expansion)
or a meaning that would violate another clear policy
interpretation by an administrative agency should be accepted as conclusive if consistent with the purpose of the statute
Two schools of thought:
1) judges update the norms of the statute, emphasis on policy
(“Foster” of the spelunchean explorers case)
2) greater competence of legislature to for public policy, emphasis on plain meaning
(“Keen” in spelunchean case)
the assumption is “fictive” because it assumes that Congress intended certain results from things that it didn’t even think about
Examples of Legal Process Theory:
1. Shine v. Shine—The court clarified a legislative contradiction by holding that alimony is not dischargeable in the instance of bankruptcy.
the plain meaning violated a policy that bankrupcy does not exempt alimony
argued that the legislative intent was not to change this policy (no express intent)
used legislative history to support intent argument—the process was not sound
2. United States v. Locke—The Supreme Court narrowly construed a statutory deadline.
the plain meaning was clear
cannot assign a different intent to Congress not supported by plain meaning
Deference to the supremacy of the legislature
Textualism: based on plain meaning of the text
tools = text of the statute, dictionary, ordinary usage, canons, legislative history
pros = prevents the judge from applying his own interpretation to get a desired outcome
Easterbrook—courts cannot apply a statute unless the language of the statute clearly targets the problem
Scalia—should abandon legilsative intent/ history because it is subjective
spectrum of textual interpretation:
from “strict constructionsim” to Nihilism (anything)
Scalia’s middle ground = “reasonable”—what an ordinary person would understand from the text
cons = can create absurd results not intended by Congress
Economic Theory of Textualism—ex ante perspective: evaluate a theory of interpretation based on whether it sets up a rule that will be good for the average case and provide proper incentive for compliance, not because you like its result in a particular case.
Examples of Textualism:
1. TVA v. Hill—the court construed a regulation passed by the EPA as preventing the TVA from continuing construction of a dam as previously authorized by Congress.
interpreted continuation of construction as being in contradition to the plain meaning of the statute enabling the EPA
used legislative history to show that Congress’ intent was to make protection of endangered species the highest priority over any conflict of interest
on its face, the interpretation is overbroad (to make Congress change the statute)
2. Griffin v. Oceanic Contractors, Inc.—The Supreme Court construed a private action statute as allowing plaintiff a “windfall” reward, although obtained through laches (waiting to bring a case so you get more damages)
the plain meaning is clear on the method for calculating the damages
used legislative history to prove that Congress intended the reward to be punitive as well as compensatory
no other valid interpretation available, therefore, this interpretation must stand even if it is absurd because Congress didn’t intend to allow windfall
3. Green v. Bock Laundry Machine Company—The Supreme Court held that a statute protecting defendents from impeachment in trial applied only to criminal cases interpretation that would favor defendant would be absurd
departure from the policy that any witness is impeachable must be explicit
no explicit language intending the statute to apply to defendents in civil cases
Scalia’s concurrance: the party arguing an absurd interpretation bears the burden of providing evidence for such interpretation
meaning is found in everyday context understood by all of Congress and
meaning must be compatable with surrounding law unless explicit exception
unintended unconstitutionality justifies departure from plain meaning
4. Chisom v. Romer—The Supreme Court held that judicial elections are protected by the Civil Rights Act from discriminatory zoning
used legislative history to prove that Congress intended “representative” to mean “elected official,” which includes judges
consistent with the statute’s purpose of preventing discrimination in voting rights
Scalia’s dissent: plain meaning has precedence over purpose or “expected meaning”
plain meaning (dictionary) does not include judges as representatives
consistent with purpose, since federal judges are not even elected anyway
5. West Virginia Hospitals v. Casey—Supreme Court held that rewards for attorney fees in civil rights cases does not extend to expert witness fees.
looked to other statutes: expert witness fees is mentioned explicitly
not explicit in the statute in question, so cannot interpret it as including those fees
6. United States v. Marshall—The court construed a criminal statute as including paper carriers in the weight of LSD.
Ordinary usage of “mixture” means that the elements are inseparable
the plain meaning therefore requires that paper carriers be a mixture, since it is inseparable from the drug
Posner’s dissent: plain language violates the equal protection clause, because more doses in pure form can be charges a smaller sentence than one dose
policy conflict
must interpret the statute to weigh only the pure drug
Institutionalism: consideres the dynamic of Congress, administrative agencies, and the courts
FDA v. Brown & Williamson Tobacco Corp.—the Supreme Court held that the FDA did not have durisdiction to regulate the sale of tobacco products
Congress intended to prevent FDA from regulating cigarettes (legis. history)
conflict: Congress has already itself regulated tobacco, and this policy would be inconsistent with an FDA policy if it were allowed to regulate tobacco
Public Choice: interprets statutes in a way that avoids rent-seeking behavior
Critical Race and Feminism: takes into account the statute’s effect on women/ blacks
the interpreter’s perspective is critical, can be champion of the unheard voices
statute must be interpreted in context
Other Examples:
1. Holy Trinity v. United States—The Supreme Court held that a statute forbidding immigrants from working did not prevent a British pastor from his trade.
Preferred legislative intent over plain meaning
(legislative history can change plain meaning)
Supported the decision through purpose: statute was intended to remedy the economic impact of importing temporary workers from overseas
2. Fishgold v. Sullivan Drydock & Repair Corp.—Judge Hand held that a statute which forbade firing of an employee returning from military service did not apply to a man who had been “laid off” within one year of his return.
Interpreted the plain meaning to forbid only permanent discharges, whereas lay offs are interpreted as temporary
Supported the decision through purpose: statute was intended to give incentive to join the military during the war, not to reward veterans afterwards
Theories of Application
Formalism: Legislatures are political (bad), courts are not. Therefore courts are better equiped to interpret the law, and should construe laws narrowly to ensure stability (Blackstone)
Law is Policy: Decisions about the law are policy decisions (Holmes)
“Legal Realists”—judicial decisions are based on ideology rather certainty abt law
“Regulatory State”—judiciary not able to investigate and gauge public sentiment, must defer to “administrative machinery” (Brandeis)
Rationalism: Although judicial decisions do create policy, judges are limited by legal principles, which control the effects of statutes (Cardozo)
Statutes themselves create these principles (Pound)
“Purposivism”—these principles are determined by values, which change based on perceived possabilities and facts gathered from experience (Fuller)
Statutory Interpretation of Title VII
1. United Steel Workers of America v. Weber—the Supreme Court held that employers’ affirmative action policies do not violate Title VII by discriminating against whites (who are allowed to sue under Title VII acc. to McDonald v. Santa Fe Trail Co.)
cites statute’s purpose to end discrimination
qualifies/ limits that purpose by excepting affirmative action for minorities
Title VII reads that it does not require affirmative action, but no clause prohibits it
dynamic statutory interpretation: changed with the times
rules v. standards—Weber sets a standard, not a rule, must be evaluated case by case
2. Johnson v. Transportation Agency, Santa Clara County—the Supreme Court applied Weber to affirmative action in gender
recognized legislative inaction as Congressional approval of Weber’s outcome
3. Taxman v. Board of Education of the Township of Piscataway—The court held that affirmative action by an employer with a racially balanced workforce violated Title VII.
qualifies/ narrows purpose to mean that affirmative action is ok until diversity
Administrative Agencies
Why administrative agencies?
Weaknesses of courts:
not experts on subject matter
only case-by-case
Weaknesses of legislature:
driven by their constituents
influenced by powerful interest groups
Weaknesses of direct democracy (referendum):
not actual democracy—depends on who shows up to vote
again driven by powerful interest groups
not fully informed
Types of administrative action:
adjudication/ rulemaking
formal/ informal
formal adjudication:
resolving individual claims via court-like proceedings (ex. immigration)
formal rulemaking:
administrative regulations (ex. safety regulations OSHA)